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socrateaser, Lawyer

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Court discretion

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Court discretion

Per your answer to the last question, if the services were provided according to legal procedure and nothing can be found wrong, is it still at court discretion to lift default judgement? For example, the judge may say the defendant motion filed not too much later after the deadline set by court (i.e one week later) etc. Any ideas the court likely leaning to which side in this situation?

Also, can the plaintiff contact the warning order attorney to see if the procedure followed before the hearing?

Under Kentucky precedent case law, to set aside a default judgment, good cause must be shown to the court.

To show good cause, and thereby justify vacating a default judgment, the defaulting party must: (1) provide the trial court with a valid excuse for the default; (2) demonstrate a meritorious defense; and (3) show the absence of prejudice to the non-defaulting party. See First Horizon Home Loan Corp. v. Barbanel, 290 S.W.3d 686 (KY Ct. App. 2009).

You ask whether the court has discretion to set aside default if service is found to be proper. The answer is that if service is proper, then the defendant needs a valid excuse.

It's insufficient to merely show a mistake, inadvertence or excusable neglect. The excuse must be of the sort that is beyond the defendant's control (serious injury or illness, interference by a third party -- or the plaintiff, etc.).

BotXXXXX XXXXXne, the court's discretion is highly limited. The judgment will not be set aside absent a clear and convincing reason for the failure to answer timely.

Re contacting the court to examine the procedure, the plaintiff can contact the court, but I wouldn't expect a useful answer, because the clerk isn't going to volunteer that the proper procedures weren't followed. It's up to the defendant to prove that there was some defect in process that caused the failure to answer. In my view, this makes is somewhat unnecessary to try to find out what happened. Better to wait and see what the defendant claims as the excuse.

Thanks. Just one more fact. The judge gave 20 more days after the warning order attorney completed her report. In that statement of 20 days, judge wrote something like "the court is obligated to issue default judgement without delay if the defendant failed to respond by date x". However, the default judgement didn't come at date x. Then the defendant filed motion a week after date x. The court explained the back log work and clerk's sickness for the delay of default judgement.

If the defendant cite reason such as illness, does he must show doctor's or medical examines he did prior to date x mentioned above?

The defendant's motion is "the service is not proper had". It seems the defendant wants to dispute the procedure of the service. If he was sick or in other uncontrolled situation, should the motion cite other reason instead of this? For example, if he was sick or in hospital or he was out of town, should he cite reason like "the defendant was unable to receive service due to uncontrolled reason"?

Thanks. Just one more fact. The judge gave 20 more days after the warning order attorney completed her report. In that statement of 20 days, judge wrote something like "the court is obligated to issue default judgment without delay if the defendant failed to respond by date x". However, the default judgment didn't come at date x. Then the defendant filed motion a week after date x. The court explained the back log work and clerk's sickness for the delay of default judgment.

A: The only thing that matters is whether or not the default judgment was entered into the court record before the defendant answered the complaint. If yes, and if the defendant received another 20 days notice or more, then the original service, even if defective, would be irrelevant, because the defendant had notice from the court that a lawsuit was filed against defendant.

If the defendant cite reason such as illness, does he must show doctor's or medical examines he did prior to date x mentioned above?

A: The actual date of entry of judgment is the only date that matters. Assuming that judgment is entered, then the defendant must satisfy the requisite elements to set aside judgment, that I previously explained.

Concerning the defendant's proof, a medical excuse without independent corroboration is likely to be given little weight by the court. Regardless, were I representing the plaintiff, I would argue that the absence of any corroboration by a physician to support the defendant's excuse should cause the court to give defendant's testimony no weight -- and if nothing else, to reserve a decision on the set aside, until the defendant provides some corroboration for the claim of illness or injury. The defendant's motion is "the service is not proper had". It seems the defendant wants to dispute the procedure of the service. If he was sick or in other uncontrolled situation, should the motion cite other reason instead of this?

A: If defendant's motion to set aside is based upon improper service, but the defendant received notice from the court of the lawsuit, and pending default, then the defendant will have had actual notice, and that make the original service irrelevant, even if it were defective.

For example, if he was sick or in hospital or he was out of town, should he cite reason like "the defendant was unable to receive service due to uncontrolled reason"?

A: Defendant must prove a valid excuse. It should appear in the declaration/affidavit of facts. Claiming that defendant was sick without corroboration will not result in relief from judgment -- the default will stand.

Here is the a main piece of the ORDER from Judge who granted 20-day extra time.

"This matter came before the Court on Feb 24, 2013 on the Plaintiff's motion for default judgement...

IT IS HEREBY ORDERED THAT the Defendant shall have until March 20, 2013 in which to respond to the Defendant's motion. Should the Defendant fail to do so, the Court will be obliged to grant the motion without further inquiry or delay. SO ORDERED this 28th day of Feburary,

2013".

Based on this statement, the plaintiff filed a motion asking for default judgement which includes compensation amount. Prior to this motion, the plaintiff's attorney filed initial complaint charging defendant of breaching contract and fraud. But the plaintiff's motion mentioned above didn't include punitive compensation. His attorney said the punitive compensation needs a seperate hearing which does not happen yet.

Based on this information, can we tell the default judgement entered court record or not before March 20? Or the plaintiff's attorney has to write a default judgement which is not the motion mentioned above?

Based on this information, can we tell the default judgment entered court record or not before March 20?

A: The only way to know if the default was entered, is to contact the court clerk and see if the judgment of default is docketed in the court file.

Or the plaintiff's attorney has to write a default judgment which is not the motion mentioned above?

A: A motion for default will generally have a proposed judgment attached. There are limits to what a default judgment can order. Usually, it's only money. Otherwise, the court must hold a hearing and the plaintiff must prove all of the elements of the various claims before the judge can enter a default.

if the default judgement was neigher recorded by court clerk nor written by plaintiff's attonney yet before the defendant's motion (of setting aside default judgemnt) received by court, then will the case proceed as a normal one as if the default judgement does not exist?

What you are describing is a circumstance where judgment is not yet entered. If not, then the defendant has the opportunity to provide good cause to permit the court to grant the defendant leave to answer the plaintiff's complaint.

The law is the same, but the court is somewhat more lenient on permitting the defendant to answer before the default is actually entered. So, I'd say it's about a 50/50 chance that the court will allow the case to go forward.

After the warning order attorney filed her final report stating unsuccessfully reaching the defendant, the plaintiff filed following motion which was recorded in court on Feb 23, long before the Defendant's motion asking for setting default judgement asid.

" MOTION OF PLAINTIFF FOR DEFAULT JUDGEMENT

Plaintiff hereby moves for default judgement against Defendant *** in

the liquidated amount of $***** plus costs as prayed for in the complaint, and set a hearing on unliquidated damages in the form of business losses since the transaction and punitive damages on the grounds that the Defendant has failed to move, answer, or otherwise plead in response to the complaint. The Defendant was served by Warning Order on ..."

I believe the above should be the default judgement filed by plaintiff's attorney. The hearing occurred a couple of days later. Right at the hearing, judge issued ORDER asking Defendant to respond within 20 days. The defendant failed to respond within 20 days. At the expiration of the 20 day period, the judge didn't issue another ORDER to grant this default judgement motion. And then after another 7 days, the Defendant filed a motion asking to set asid the default judgement citing the Defendant was not properly served.

In summary, the plaintiff's attorney filed above default judgement(motion) and the court recorded it right away. The judge gave the Defendant 20 days and then didn't rule on it. Is it still considered as "judgement entered" you mentioned? If it is , then the Defendant shall have very hard time to dispute the default judgement, right?

Unless and until there is an order signed and dated by the judge (or stamped by the clerk with the judge's signature), filed with the court, stating that judgment is entered for the plaintiff, and stating the definite and certain liquidated amount of that judgment -- there is no judgment.

There are many reasons for this: An actual judgment is the basis for the court clerk to issue a writ of execution or garnishment to the county sheriff. An actual judgment is the basis for an appeal, and it starts the clock for any appeal. An actual judgment is the basis for enforcement actions which may be required in different jurisdiction, because the judgment must be registered/domesticated in those other jurisdictions.

An actual judgment must be definite and certain in all respects -- it must put the defendant on notice of its existence, and notice of entry of judgment must be served/mailed on the defendant. In short, it must be the "final decision" of the trial court, before "due process of law" is satisfied.

From what you have described, there is no judgment entered by the court. If you are the plaintiff, then you may want to draft a proposed judgment stating the terms and conditions of the award, and deliver it to the clerk for signature and entry into the court records.

Yes, there is no judgement yet. I don't know why the judge didn't rule. Does the plaintiff's attorney suppose to draft a proposed judgement stating the terms and condition of the award? Without such a well defined proposed judgement, the judge cannot rule(?). If this is the reason of no judgement, is this an oversight of defendant's attorney? However, is it too late now to submit a proposed judgement now because the next hearing set is about "court service not proper and fairness of lifting default judgement"? Based on your previous answer, without judgement, it seems the defendant has 50/50 chance to move the case forward and the court is lenient to permit the defendant to answer charges. How the proposed judgement help the plaintiff at this stage? Does it still matter whether the service procedure has error or not because of the lack of judgement?

Does the plaintiff's attorney suppose to draft a proposed judgment stating the terms and condition of the award?

A: Yes. Without such a well defined proposed judgment, the judge cannot rule(?).

A: The judge can rule -- and, if this were happening 150 years ago, the judge would have already ruled by drafting the judgment him/herself. But, modernly, the judge allows the plaintiff's attorney draft the judgment. That's just how it's done, because that way, no one can blame the judge for an error in drafting.

If this is the reason of no judgment, is this an oversight of defendant's attorney?

A: Yes, I think this may have been an oversight. Can't be certain, though. However, is it too late now to submit a proposed judgment now because the next hearing set is about "court service not proper and fairness of lifting default judgment"?

A: This is actually a difficult question, because since no judgment is entered, a motion to set aside judgment is untimely -- there is nothing to set aside, yet. If I were the plaintiff's attorney, I would probably respond to the motion as "not legally justiciable," because there is no judgment for the court to set aside, and so the court should dismiss the motion. The defendant's proper motion is for leave to answer the complaint untimely. Meanwhile, I would also file a proposed judgment for the judge's signature. Maybe the judge will sign -- maybe not. Nothing ventured, nothing gained.Based on your previous answer, without judgment, it seems the defendant has 50/50 chance to move the case forward and the court is lenient to permit the defendant to answer charges. How the proposed judgment help the plaintiff at this stage?

A: See above. Does it still matter whether the service procedure has error or not because of the lack of judgment?

A: It could be used by defendant to justify the court granting leave to answer the complaint.

From what you've described, everything is pretty messy at this point. The court probably needs the hearing so the judge can figure out what to do and announce it to everyone at the same time -- so there will be no more confusion.

Hope this helps.

Note: This is a very complicated issue. I hope you will consider providing me with another positive rating for my efforts here -- so that I may receive appropriate compensation for the additional answers.

Thanks. The plaintiff had communicated extensively to remind his attorney the expireation date of the 20-day and reviewing the default judgement draft. His attorney was not effectively communicating and usually went no response for a week or two at the critical moment.

The plaintiff was very frustrated for this lack of communication. But how could the plaintiff figure out the reason of no judgement? The plaintiff also called Judge's office. The answer was either the office staff's family member was sick,or the the back log work.But until today, if still no judgement, does it mean not due to office staff's delay? I hope this is not a mal-practice of plaintiff's attorney. The plaintiff might have missed default judgement due to his attorney's commitment or lack of experience(? 20+ years practice in business law). This case may drag on for another six months.

Customer:replied 2 years ago.

Thanks. The plaintiff had communicated extensively to remind his attorney the expireation date of the 20-day and reviewing the default judgement draft. His attorney was not effectively communicating and usually went no response for a week or two at the critical moment.

The plaintiff was very frustrated for this lack of communication. But how could the plaintiff figure out the reason of no judgement? The plaintiff also called Judge's office. The answer was either the office staff's family member was sick,or the the back log work.But until today, if still no judgement, does it mean not due to office staff's delay? I hope this is not a mal-practice of plaintiff's attorney. The plaintiff might have missed default judgement due to his attorney's commitment or lack of experience(? 20+ years practice in business law). This case may drag on for another six months.

I think no matter what the plaintiff do at this moment, the judge is likely to move the case to normal hearing and review all the evidence.

The plaintiff was very frustrated for this lack of communication. But how could the plaintiff figure out the reason of no judgment?

A: It seems to me that the reason is self evident: no proposed judgment was submitted to the court. I don't think that the underlying reasons matter. Here's a link to a competently prepared motion for default judgment. If you scroll down to page 22 in the file, you will find an "Order of Default Judgment" for the judge's signature. That's what's presumably missing from the plaintiff's motion for default.

The plaintiff also called Judge's office. The answer was either the office staff's family member was sick,or the back log work.But until today, if still no judgment, does it mean not due to office staff's delay?

A: I don't know. If plaintiff wants to try to force a default, plaintiff may want to submit a proposed order of default judgment -- and see what happens.

I hope this is not a mal-practice of plaintiff's attorney. The plaintiff might have missed default judgment due to his attorney's commitment or lack of experience(? 20+ years practice in business law). This case may drag on for another six months.

A: It may be malpractice, because it could create substantial additional costs for plaintiff's attorney, if the defendant is granted leave to answer the complaint before entry of judgment.

1) ask his attorney to file to dismiss the motion of defendant, and draft a default judgement to send to court.

2) should the plaintiff change his attorney if potentially suing the attorney of malpractice? But the damage from his is not clear or difficult to quantify at this time. Probably have to deal with the malpractice insurance company. One mess after another.

I wouldn't switch attorneys, until all of the issues surrounding the default are resolved. Plaintiff may find that his attorney will make it obvious that the attorney messed up. And, if the attorney manages to resolve the problem, then plaintiff can complain that the additional hearings would have been unnecessary, had the order of default been submitted to the court at the time of the motion for default -- which would give plaintiff a good rationale to avoid paying legal fees for the unnecessary hearings.

Hiring a new attorney now will just create additional unnecessary costs.

I called judge's office again. The clerk said there is a default judgement order entered about a week after the 20-day expiration deadline set by the judge for the defendant to respond. I asked the clerk to mail me the order. My attroney also is looking for this order because the defendant's motion is asking to set the default judgement aside. But my attroney didn't say whether he drafted the default judgement or not even if I kept asking him.

My question: if the order was entered, then why it was not sent to either the plaintiff or his attorney? Besides, if this is court judgement, the defendant suppose to go appeal court. Why the court still accept the defendant's motion.

The judge's ORDER of warning default judgement if the defendant failed to respond with 20 days was sent to defendant via certified mail. Besides this does the plaintiff's attorney need to send default judgement to Defendant? Here, I wonder how the defendant learned the default judgement and then filed motion.

However, according to a) in TITLE 735 ILCS 5/2-1302 , even if the plaintiff's attorney failed to send notice to defendant, the default judgement order remain valid. The problem is that plaintiff's attorney didn't receive the order from court at all.

The judge's ORDER of warning default judgement if the defendant failed to respond with 20 days was sent to defendant via certified mail. Besides this does the plaintiff's attorney need to send default judgement to Defendant? Here, I wonder how the defendant learned the default judgement and then filed motion.

However, according to a) in TITLE 735 ILCS 5/2-1302 , even if the plaintiff's attorney failed to send notice to defendant, the default judgement order remain valid. The problem is that plaintiff's attorney didn't receive the order from court at all.

A: You mentioned earlier that the court has already set aside the default. If so, all of these details are irrelevant, in my opinion -- because if the court set aside the default, then the defendant is entitled to answer the complaint.

You also have an upcoming hearing, right? Nothing makes any sense right now, and it probably won't until you get in front of the judge and have an opportunity to work through the issues.

Yes. But the upcoming hearing is set for only for 30 minutes to determine whether the service was proper (because the defendant's motion was about service not properly done) and the fairness of lifting the default judgement. As a result, it will not be a full blown hearing for defendant to answer the complaint. Instead, it will be for plaintiff to prove the services were properly done or not. If the court already decide to set aside the default judgement, then the hearing should be about answering complaint by the defendant.

I agree that if the judgment is already set aside, then the question is: where is defendant's answer to the complaint? And, if it's not set aside, then the question is, can defendant provide good cause for the court to set aside the default?

The problem is that we cannot determine the actual status of the case. That's how I would start the hearing, i.e., by suggesting to the judge that there appears to be some uncertainty as to exactly what is the current court order: is the default entered, or set aside?

Once you know that, you and the defendant will know what is required for presentation to the court. It may be that neither side will be prepared, if the expectation is for one thing, and defendant is prepared to prove the other. So, you may end up with another continuance, unless the "stars are in alignment" at the hearing.

I'd want to be ready to fight either battle, depending upon the court's conclusion as to where the case currently stands.

My attroney replied as follows. The judge did issued/signed default judgement. Baed on this statement, if the judge wants to vacate the default anyway, why the next hearing is only about

"failure of service" or "fairness of lifting the default"? Or the judge wants to hear the story of the Defendant's failure to respond. My attorney said "no need of other witness" in the next hearing. Does the hearing only handle one thing at a time? Will the judge ask the defendant about the fact stated in the plaintiff's conplaint (i.e. like not practice in clinic but billed government with his name/credential on behalf of other doctor).

At this stage, any chance of settlement like the defendant makes an offer of compensation?

"As I have said before, the judge can vacate the default for many reason, only one of which if the failure of service. I think our service is good, but that will not be the end of the inquiry. I believe there is a default judgment. See attached docket entry for 3/**/2013. That is why Defendant asked for relief from it. I don’t know why the judge took any extra week and a half after March 18 to grant the default, except that this is not his only case. If Fultz filed a motion to vacate within 10 day of the entry of default, the trial judge has jurisdiction to vacate it. The case does not go to the Court of Appeals."

At this stage, any chance of settlement like the defendant makes an offer of compensation?

A: At this moment, assuming a default is entered, then plaintiff is entitled to payment under the judgment, unless and until the default is set aside. So, yes, there is an opportunity for a settlement. The judgment would remain in default, and the plaintiff (aka, "judgment creditor") could enter into an agreement under which the creditor would provide a "satisfaction of judgment" form to the defendant (aka "judgment debtor"), in exchange for a payment in an amount less than that for which the judgment provides.

The judgment creditor would file the satisfaction of judgment, the judgment debtor would pay the judgment creditor, then voluntarily withdraw the motion to set aside default, and the case would terminate.

Thanks. According to the above statement of plaintiff's attorney, a default was entered. However, the court then vacated the default after Defendant filed motion saying "proper services was not had on the Defendant in this action".

My attorney said court can vacate default within 10 days of the entry of default. Defendant used "proper services was not had on the Defendant in this action" to ask court to set aside the default and the court did.

What the plaintiff should do? Should the plaintiff's attorney file a motion to dispute defendant's "proper services was not had on the Defendant in this action"? Nor sure the defendant's attorney made the motion or not. But the next hearing is about whether the service is proper and fairness of lifting the default. If the defendant was served properly, will the court more likely still vacate the default? Does the plaintiff deserve an explanation should this happen (which is likely now)?

Thanks. According to the above statement of plaintiff's attorney, a default was entered. However, the court then vacated the default after Defendant filed motion saying "proper services was not had on the Defendant in this action".

My attorney said court can vacate default within 10 days of the entry of default. Defendant used "proper services was not had on the Defendant in this action" to ask court to set aside the default and the court did.

What the plaintiff should do? Should the plaintiff's attorney file a motion to dispute defendant's "proper services was not had on the Defendant in this action"? Nor sure the defendant's attorney made the motion or not. But the next hearing is about whether the service is proper and fairness of lifting the default. If the defendant was served properly, will the court more likely still vacate the default? Does the plaintiff deserve an explanation should this happen (which is likely now)?

A: If the default was set aside, then there would be no reason for a hearing on the motion to set aside. So, either the default is not set aside, or the hearing is to be used for some other purpose, such as to put everyone on the "same page," and give the defendant a deadline to answer the complaint.

Since we don't know what the reason for the hearing is at this point, the only thing to do is wait and attend the hearing. There is no motion to file, because you don't know what the status of the case actually is, and you won't know until the hearing.

Since Defendant's motion was "service not properly done" and asked for setting the default aside, the court then did set aside the default. I guess the court cannot just accept "service not properly done" without a hearing.

I think that is what the hearing about. However it is unknow what the next step the court takes even if the serice was done properly.

735 ILCS 5/1301 (e) provides, "The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable."

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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